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By: J. Kent Holland

A contractor unsuccessfully argued that evidence gathered during surprise OSHA inspection should be suppressed and barred from the case because the OSHA inspector did not have a warrant.  The excavation site was a public street, not private property, and the court held the contractor had no reasonable expectation of privacy in an open trench dug on a public roadway.

In the case of Lakeland Enterprises v. Elaine L. Chao (7th Cir. Ct. App. 2005), an OSHA compliance officer (“ Greenwood ” or “OSHA inspector”) happened across a construction site and conducted an impromptu inspection.  He had been driving by an industrial park project when he noticed an excavation in progress.  He parked his car and, in order to see what was going on, he walked past some traffic cones blocking street and pedestrian traffic from the site.  After he passed the cones, we walked up to an open trench where observed an employee of the contractor (“Lakeland Enterprises”) working.  He also observed a backhoe operating beside the trench.

Without announcing himself or who he was, Greenwood began videotaping the scene. It is not clear from the case, where he was in relation to the backhoe that was operating at the site and how it was possible for him to videotape without getting in the way.  In any event, a surprised supervisor approached him and advised him that  the site was closed to the public and to please step back behind the cones.

It was only after being addressed by the supervisor that Greenwood explained who he was and stated that he was conducting an inspection.   At that point the contractor’s personnel began cooperating with him as he proceeded to measure the trench wall slopes and the length and width of the trench.  Greenwood also took soil samples from the trench. He also noted that there was no ladder and that there was no trench box in place to support the walls.

Based on this evidence, as well as certain testimony, OSHA issued three citations, including one for willfully permitting an employee to work in a trench witout adequate protection (inadequately sloped trench walls).  Lakeland contested the citations and an administrative law judged conducted a two-day evidentiary hearing and decided against Lakeland .

At the ALJ hearing, Lakeland argued for the suppression of the evidence gathered by the inspector, asserting that the search violated the Fourth Amendment because it was conducted without a warrant.  The ALJ denied the motion, concluding that Lakeland had no right of privacy on the excavation site because “that land and that road was a publish road that [ Lakeland ] did not own.” In addition, said the ALJ, “it was covered by the open fields doctrine.”  The ALJ also concluded that any Fourth Amendment claim was waived because Lakeland did not object to the inspection and ask for a warrant at the site.

On appeal, the U.S. Court of Appeals for the Fourth Circuit stated that it was an open question in this Circuit whether the exclusionary rule for evidence applies to OSHA civil enforcement proceedings.  Other Circuits have held that the exclusionary rule applies.  But in this case, the court concluded that it didn’t need to decide that constitutional question because “ Lakeland loses even if the rule applies in this context.”  This is because the court agreed with the ALJ that there is no reasonable expectation of privacy in an open trench dug on a public roadway. The court also agreed with the ALJ that any potential Fourth Amendment objection was waived when Lakeland failed to object to the inspection and demand a warrant at the scene.

Comment:  The contractor may have faired better in this case if it had objected to the inspection instead of cooperating.  When the inspector walked past cones and warning signs barring the public from access to the site, and began videotaping without identifying himself, he crossed the line both physically and metaphorically.

Whereas laborers at the site may have been wearing protective gear, here is an unidentified man (apparently without protective gear) that the contractor initially took to be a foolhardy member of the public walking right into the middle of an active construction site – while heavy equipment was operating. The contractor may have reasonably been concerned for the safety of this individual and also been concerned that his presence would cause confusion and a potential accident at the site affecting the safety of the contractor’s workers.

At that point, it may have been appropriate for the contractor to have simply demanded that the inspector get back behind the line.   I have no personal knowledge about this case, but it is hard for me to imagine that the Contractor would have suffered any worse penalty if, when the inspector belatedly identified himself, the contractor had just said no – get back behind the line.   Perhaps some of you who are reading this will have an opinion concerning this that is better informed or different from my own.  Your comments are welcome.  Please send them to Kent@ConstructionRisk.com and I will consider publishing them in a future issue of this newsletter.

About the author: Kent Holland is a construction lawyer  in Tysons Corner, Virginia, and is a risk management consultant for environmental and design professional liability insurance and contracts.   He is also publisher of ConstructionRisk.com Report.  He may be reached at Kent@ConstructionRisk.com.  This article is published in ConstructionRisk.com Report, Vol. 8, No. 1.